Opinion
CIV. 98-4060.
January 24, 2000.
Scott Hoy, Sioux Falls, SD, Attorneys for Plaintiff, Mark Haigh, Davenport, Evans, Hurwitz Smith, Sioux Falls, SD.
Bruce G. Jones, Daniel Wilczek, Jennifer Haskin Will, Faegre Benson, Minneapolis, MN, Attorneys for Defendant.
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
INTRODUCTION
[¶ 1] Plaintiff Wesley McConnell sued defendant Pioneer Hi-Bred International, Inc., contending he was terminated because of his age and perceived mental disability in violation of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and that under state law he was wrongfully terminated and intentionally inflicted with emotional distress. Pioneer moves for summary judgment on all causes of action. Jurisdiction is based upon 28 U.S.C. § 1331 and 1367. McConnell asserts that genuine issues of material fact preclude summary judgment on all of his claims. For the reasons discussed below, summary judgment is granted to Pioneer.
FACTS
[¶ 2] McConnell, a 54-year-old Caucasian male, had been employed by Pioneer as a district sales manager, or in other positions, for twenty-five years at the time of his termination on October 2, 1996. In his position as district sales manager, McConnell supervised local sales representatives in southeastern South Dakota, including motivating, educating, and evaluating them. He also ensured that the sales representatives had sufficient seed on hand for sale. He promoted the sale of Pioneer seed throughout his region. McConnell, an agronomist, used his technical training to answer questions of purchasers and his sales representatives.
[¶ 3] McConnell's superiors said good things about McConnell as a district manager. Del Kirkus was a Pioneer field sales manager and McConnell's immediate supervisor until he retired in 1992. Kirkus said McConnell handled the duties of district sales manager "very well" in a region that was typically more demanding than other Pioneer regions.
[¶ 4] In 1988, McConnell began experiencing some difficulties with his job performance. Pioneer questioned McConnell's ability to work well with his subordinates. Sales representatives and other district sales managers discussed with McConnell his overbearing and abrasive style. McConnell repeatedly revised standard company programs to conform to his own way of doing things contrary to company policy. McConnell sent inappropriate motivational material, sometimes of a religious nature, to his sales representatives,.
[¶ 5] At the request of Pioneer, McConnell was given a psychological evaluation by Dr. Stephen Langenfeld on July 11, 1988. Dr. Langenfeld diagnosed McConnell as having bipolar disorder. The evaluation stated that his condition was psychiatric and behavioral and that his behavior was influenced by his illness and was not a malicious, irresponsible attempt to cause others grief. McConnell was put on lithium for his bipolar condition. Pioneer was informed that McConnell suffered from bipolar disorder.
[¶ 6] During July of 1988, McConnell filled out his own performance planning and evaluation form, scoring himself between average and slightly above average in most categories. He acknowledged on his self-evaluation form that he needed to be less aggressive with sales representatives and others within the company. In August 1988, the area sales manager, Jerry Gault, Kirkus, and McConnell met to discuss McConnell's work performance. The perceived problems with performance were reiterated to McConnell. The problems continued, however, and in a letter dated June 14, 1991, Gault cautioned McConnell not to revert back to his former abrasive and overzealous behavior. McConnell was given a list of recent activities describing McConnell's inadequacies.
[¶ 7] From 1988 until the date of McConnell's discharge, Pioneer's Director of Workforce Strategies, Dr. Judy Winkelpleck, and others confronted McConnell when problems with his performance arose. Performance problems were documented in McConnell's personnel files, including an abrasive style of communication with his fellow employees and sales representatives, failure to follow company policies and procedures, failure to appropriately use company property, and failure to properly prepare sales plans. McConnell was advised of his failures as a district sales manager and was repeatedly asked whether Pioneer could do anything to aid him in his managerial responsibilities.
[¶ 8] In late July of 1991, McConnell admitted himself to the hospital where he remained for three weeks. He was diagnosed with depression. After his hospital stay, he returned to work without suffering any negative repercussions at work.
[¶ 9] In 1992, Pioneer changed its sales territories to create a new North Plains Sales Area. Mike Davis was assigned as the new Area Sales Manager in Sioux Falls, South Dakota. On his own initiative and without consulting Davis, McConnell proposed a complete restructuring for the North Plains office. Davis viewed the plan as insubordination. McConnell was issued a written warning in October of 1992, which constituted the first stage of progressive discipline. The warning directed McConnell to attend to his duties as a district sales manager and not to engage in the duties of his supervisor's supervisor unless requested. The warning also detailed examples of McConnell's tendency to irritate and offend others.
[¶ 10] In 1993, Kirkus retired. Dave Ricks then became McConnell's immediate supervisor. Ricks issued a second warning in September of 1993 to McConnell advising him that if his performance did not improve, he would be discharged. The warning detailed that McConnell failed to follow company policies, he spoke in an accusatory manner, and he was wasting company resources and mailing unauthorized material to his sales representatives. Prior to its issuance, the second warning was reviewed by Winkelpleck so that she could address any ADA implications.
[¶ 11] Pioneer continued to be concerned about McConnell's performance problems. In September of 1995, Winkelpleck spoke with Dr. Vaca, McConnell's treating physician. Dr. Vaca informed her that McConnell's bipolar condition did not currently affect his work performance, but that his condition would result in partial or total disability about five months a year, from late fall through early spring. Dr. Vaca also stated that he was attempting to adjust McConnell's level of lithium.
[¶ 12] After consulting with Dr. Vaca, Pioneer decided to have McConnell evaluated for four months by Dr. Vaca and Dr. Van Loon to determine whether his bipolar condition interfered with his ability to do his job as district sales manager.
[¶ 13] Dr. Vaca prescribed medication for McConnell and referred McConnell to Dr. Van Loon for background personality testing. Dr. Van Loon also began individual therapy with McConnell. Based on his analysis of the tests that were administered to McConnell, Dr. Van Loon determined that McConnell's bipolar disorder was not significant. Dr. Van Loon concluded that what was problematic for McConnell in his workplace environment was his basic personality. Dr. Van Loon also determined that McConnell would be able to change behaviors with appropriate training.
[¶ 14] After reviewing the psychological reports of Dr. Vaca and Dr. Van Loon, Pioneer determined McConnell was not effectively performing the job of district sales manager and that McConnell's lack of performance was not due to his bipolar condition. Pioneer decided to fire McConnell. Before his discharge from employment with Pioneer, McConnell was offered an employment agreement which would have released Pioneer of any liability under the Americans with Disabilities Act or the Age Discrimination in Employment Act. This agreement, dated September 5, 1996, offered McConnell a "special assignment" position for fifteen months which involved reporting to a field sales manager. McConnell refused to accept this offer. McConnell was fired from his employment with Pioneer on October 2, 1996, at the age of 54.
[¶ 15] McConnell is presently employed as a district sales manager at Curry Seeds. He began this employment in January 1997. His present job duties are similar to those he held at Pioneer. This includes leadership of sales representatives; motivation, education, and evaluation of dealers; evaluation of products; and providing input to his supervisors.
SUMMARY JUDGMENT STANDARD
[¶ 16] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶ 17] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 106 S.Ct. at 1356.
[¶ 18] The Eighth Circuit Court of Appeals has recognized that summary judgment should seldom be used in employment discrimination cases. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Chock v. Northwest Airlines, Inc., 113 F.3d 861, 862 (8th Cir. 1997). However, the plaintiff's evidence must go beyond establishing a prima facie case to support a reasonable inference toward an illicit reason for the defendant's action. Landon v. Northwest Airlines, Inc., 72 F.3d 620, 624 (8th Cir. 1995). See also Reich v. Hoy Shoe Co., 32 F.3d 361, 365 (8th Cir. 1994). At the summary judgment level, the burden-shifting analysis as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), must be used in employment discrimination cases to determine whether summary judgment is proper. Kiel v. Select Artificials, 169 F.3d 1131, 1134 (8th Cir. 1999).
DISCUSSION
[¶ 19] I. McConnell's ADEA Claim
[¶ 20] McConnell alleges that he was terminated because he was 54 years of age. He has not submitted direct evidence of age discrimination, but relies on circumstantial evidence. In such a circumstance, this Court must apply the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973); Regel v. K-Mart Corp., 190 F.3d 876 (8th Cir. 1999). First, the plaintiff must establish a prima facie case of age discrimination. Second, if the plaintiff makes a showing of a prima facie case, the burden of production then shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. If the employer identifies a nondiscriminatory reason for its action, the presumption of unlawful discrimination "drops out of the picture." Vaughn v. Roadway Express, Inc., 164 F.3d 1087 (8th Cir. 1998) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Third, the burden then shifts back to the plaintiff who must prove the employer's proffered legitimate nondiscriminatory reason for the adverse employment action is merely a pretext for unlawful discrimination. Regel, 190 F.3d at 879.
[¶ 21] To establish a prima facie showing under the ADEA, the plaintiff must show that (1) the plaintiff is within the protected age group which includes individuals who are at least forty years of age; (2) the plaintiff is qualified for the job; and (3) the plaintiff was replaced by a younger person. Vaughn, 164 F.3d at 1090.
[¶ 22] At the time of his termination from employment, McConnell was 54 years of age. McConnell's replacement was a younger individual. Pioneer claims that McConnell was not qualified to be a district sales manager and that his inability to perform the position successfully was the underlying reason for McConnell's dismissal. Viewing the evidence in the light most favorable to McConnell, this Court finds that McConnell was qualified to work in the position of district sales manager. He performed the duties of district sales manager for several years before his dismissal. McConnell met his burden of establishing a prima facie case of age discrimination.
[¶ 23] Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the employer made the decision for a legitimate nondiscriminatory reason. Vaughn, 164 F.3d at 1090. The employer's reason for its action must be clear and reasonably specific. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Pioneer claims that McConnell was discharged due to his repeated and longstanding performance problems. This is supported by several affidavits of superiors and co-workers as well as other evidence. McConnell's discharge came after eight years of progressive discipline after which Pioneer determined McConnell's performance would not improve. The aggregate effect of the enumerated deficiencies provides a nondiscriminatory reason for Pioneer's decision to terminate McConnell.
[¶ 24] After Pioneer put forth a nondiscriminatory reason for McConnell's termination, the burden shifts to McConnell to show that Pioneer's proffered reason is pretextual. Vaughn, 164 F.3d at 1090. Plaintiff must establish "he has been the victim of intentional discrimination." Id. at 1090 (citing Ryther v. KARE 11, 108 F.3d 832, 837 (8th Cir. 1997) (en banc)). The overall evidence suggesting pretext must create an inference that discrimination based upon age motivated the adverse employment decision. Vaughn, 164 F.3d at 1090. See also Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1336 (8th Cir. 1996).
[¶ 25] Taking all reasonable inferences from the evidence in the non-movant's favor, McConnell has not met his burden of producing evidence to show that his age was either the primary or a motivating factor in the decision to terminate his employment as district sales manager. The pretext evaluation is fact sensitive. Rothmeier, 85 F.3d at 1334 (discussing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993)). Summary judgment is appropriate in an employment discrimination case if the plaintiff fails to provide evidence from which a reasonable factfinder could conclude the employer intentionally discriminated against the employee for a prohibited reason. Rothmeier, 85 F.3d at 1334. The only evidence submitted by McConnell to substantiate the age discrimination claim is his age. The fact that he was 54 years of age at the time of his dismissal and was replaced by an individual younger than himself is not sufficient to show that Pioneer's proffered reason is pretextual and that McConnell was the victim of intentional age discrimination. Summary judgment is granted to Pioneer on the age discrimination allegation.
[¶ 26] II. McConnell's ADA Claim
[¶ 27] McConnell alleges that Pioneer discriminated against him because Pioneer regarded him as being disabled due to his bipolar condition, in violation of the Americans with Disabilities Act. To survive a motion for summary judgment, a plaintiff must initially present a prima facie case of discrimination. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir. 1999). A prima facie case requires a showing that McConnell has a disability as defined in the ADA; that he is qualified to perform the essential functions of the job at issue, with or without reasonable accommodation; and that because of his disability, he suffered an adverse employment action. Berg v. Norand Corp., 169 F.3d 1140 (8th Cir. 1999). If such a presentation is made, the employer must then rebut the established presumption of discrimination by submitting a legitimate, nondiscriminatory reason for the employment action. Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999).
[¶ 28] Should the employer evidence a legitimate nondiscriminatory reason, the burden of production falls upon the employee to demonstrate this reason is pretextual. Kiel, 169 F.3d at 1135. A demonstration of pretext requires the plaintiff demonstrate a genuine issue of material fact as to whether the employer fired him because of his disability. Id. This must be done through a presentation of "evidence of 'conduct or statements by persons involved in [the employer's] decision-making process reflective of a discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude was a motivating factor in [the employer's] decision to fire the plaintiff.'" Kiel, 169 F.3d at 1135 (quoting Feltmann v. Sieben, 108 F.3d 970, 975 (8th Cir. 1997)). See also Nelson v. J.C. Penny Co., 75 F.3d 343, 345 (8th Cir. 1996). A plaintiff may not merely rely on his prima facie case to challenge an employer's proffered nondiscriminatory reason. Kiel, 169 F.3d at 1135.
[¶ 29] Dismissing an employee because of the job performance consequences of a disability, rather than the disability itself, is not actionable under the ADA. Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1219, n. 3 (8th Cir. 1999). See also Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1196, 1198 (7th Cir. 1997); Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1182-83 (6th Cir. 1997).
[¶ 30] A. Prima Facie Case Standard
[¶ 31] Title I of the ADA bars employers from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to . . . hiring, advancement, or discharge." 42 U.S.C. § 12112(a). A qualified individual is a person who "with or without reasonable accommodation can perform the essential function"of the job in question. 42 U.S.C. § 1121(8). Disability is defined as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such impairment;
(C) being regarded as having such an impairment.
[¶ 32] To fall within this definition, a plaintiff must have an actual disability, have a record of a disability, or be regarded as having a disability. Sutton v. United Airlines, ___ US ___, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Major life activity has been described by the Supreme Court to include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540, (1998).
[¶ 33] 1. Actual Disability
[¶ 34] McConnell alleges that his bipolar condition is an actual disability that substantially limits him in the major life activity of working. He does not allege that any other major life activity is affected by his bipolar condition. "When the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs." Sutton, 119 S.Ct. at 2151. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Id.
[¶ 35] The evidence supports the allegation that McConnell suffers from bipolar disorder. McConnell takes lithium daily to treat his bipolar disorder and according to his own testimony, he feels fine while taking the lithium. The Supreme Court has held that "a person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently 'substantially limits' a major life activity." Sutton, 119 S.Ct. at 2146-47. The recent medical evidence in the record indicated that McConnell's bipolar disorder was not significant and that his bipolar disorder should not cause significant problems in the workplace.
[¶ 36] McConnell did not present any medical evidence to show that his bipolar disorder substantially limited his ability to do his job at the time of his discharge. McConnell's medical expert witness, Dr. Bean, conceded that after McConnell's hospitalization in 1991, McConnell was not disabled from working by his bipolar disorder. Dr. Bean opined that Dr. Van Loon treated McConnell because he was having work problems that he believed were related to the bipolar disorder, but he acknowledged that the bipolar disorder did not render McConnell unable to perform his job responsibilities at Pioneer at the end of the treatment period. Thus, McConnell's bipolar disorder does not substantially limit a major life activity, which is a requirement for finding that an individual is disabled within the meaning of the ADA.
[¶ 37] McConnell concedes that he is doing well in a similar position in his current employment with Curry Seeds. Additionally, Pioneer offered McConnell another position within the field of sales management. As stated by the Eighth Circuit, working within the context of the ADA does not mean working at a particular job of the person's choice. Miller v. City of Springfield, 146 F.3d 612, 615 (8th Cir. 1998).
[¶ 38] 2. Regarded as Disabled
[¶ 39] McConnell alleges in the alternative that Pioneer regarded him as having a mental impairment that substantially limited the major life activity of working and he is therefore disabled within the meaning of the ADA pursuant to 42 U.S.C. § 12102(2)(c). To be regarded as disabled within the meaning of the ADA, "it is necessary that the covered entity entertain misperceptions about the individual — it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton, 119 S.Ct. at 2150. Thus, McConnell must show that Pioneer treated him adversely because it regarded him as suffering from bipolar disorder which substantially limited him in his ability to perform the major life activity of working. Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999). In addition, McConnell must demonstrate that his perceived disability created a situation in which he was regarded by Pioneer as unable to perform a class of jobs or a broad range of jobs as compared to the average person having comparable training, skills, and abilities. Murphy v. United Parcel Service, ___ US ___, 119 S.Ct. 2133, 2138, 144 L.Ed.2d 484 (1999); Shipley v. City of University City, 195 F.3d 1020 (8th Cir. 1999). See also 29 C.F.R. § 1630(j)(3)(i) (1998). To be substantially limited in the major life activity of working, McConnell must be regarded as precluded from more than a single, particular job or position. Murphy, 119 S.Ct. at 2138.
[¶ 40] Under the reasoning set forth by the Supreme Court, McConnell has failed to create a genuine issue of material fact as to whether Pioneer regarded him as substantially limited in the major life activity of working. Pioneer identified several areas of concern about McConnell's job performance. Pioneer knew that McConnell was diagnosed with bipolar disorder. Rather than reaching misperceptions based on a nonmedical lay interpretation of the limitations that bipolar disorder might cause, Pioneer sought expert medical advice to determine whether McConnell's job performance was related to his bipolar condition. Dr. Van Loon informed Pioneer that the problems McConnell was experiencing in the workplace were not the result of a significant bipolar disorder, but rather were due to the nature of his basic personality qualities. Based on the medical conclusions of Dr. Van Loon, Pioneer eliminated any misperceptions that it may have had regarding the effects of bipolar disorder on McConnell's job performance and regarded him as fully able to perform his job. In light of the medical evidence, Pioneer concluded that McConnell's job performance was deficient. Pioneer should not be punished for seeking out expert medical advice in an effort to eliminate any misperceptions that it may have had regarding whether McConnell's bipolar disorder substantially limited his ability to do this job. There is nothing in the record to support an inference that Pioneer regarded McConnell as disabled.
[¶ 41] The evidence also shows that Pioneer considered McConnell well suited for employment in other areas of the industry. Pioneer had a non-competition clause within their intended agreement for McConnell's "special position." In fact it is undisputed that McConnell was, at the time of the filing of this lawsuit, gainfully employed in the farming sales and management field with Pioneer's competitor Curry Seeds. McConnell has failed to show that Pioneer regarded him as unable to perform a class of jobs or a broad range of jobs. Viewing the evidence in the light most favorable to McConnell, he has failed to raise a genuine issue of material fact to show that Pioneer regarded him as substantially limited in the major life activity of working. Therefore, he is not regarded as disabled and has not presented a prima facie case of discrimination.
[¶ 42] B. Nondiscriminatory Reason
[¶ 43] Even if McConnell had met his burden to establish a prima facie case of discrimination based upon disability within the ADA, Pioneer met its burden to articulate a nondiscriminatory reason for the dismissal. Inappropriate employment activities, such as violation of company policy, are a legitimate reason for termination. Kiel, 169 F.3d at 1135. McConnell admits that he ignored and disregarded company directives regarding the types of information that he could share with his subordinates. Pioneer went to extensive lengths in an attempt to ensure that McConnell understood what was expected of him and the activities which he should not engage in as a manager. Pioneer documented these meetings with McConnell. Pioneer's records show that Pioneer was not satisfied with much of McConnell's performance as a district sales manager, especially at an administrative level. McConnell's own self-evaluation demonstrates he understood that at various times his work was inadequate. Pioneer met its burden of articulating a nondiscriminatory reason for the dismissal.
[¶ 44] C. Pretext
[¶ 45] As evidence of pretext, McConnell contends that Pioneer worked for four years to create a false paper trail to justify McConnell's termination. Although Ricks claims that they didn't make the decision to terminate McConnell until the fall of 1996, the evidence indicates that in June of 1995, Ricks sent a memo to Winkelpleck entitled "Help Needed to Remove W. McConnell." This memo was sent after Ricks read an article on bipolar disorder from the Harvard Business Review and sent a copy of it to the Workforce Strategies section of Pioneer. Prior to his termination, Pioneer sent McConnell to a psychologist for a determination of whether or not he was disabled.
[¶ 46] While this evidence indicates that Pioneer was dissatisfied with McConnell's job performance for at least four years prior to his discharge, it is not sufficient to show a genuine issue of material fact as to whether Pioneer actually fired him because of his disability. Rather than being evidence of Pioneer's discriminatory attitude toward McConnell, the article on bipolar disorder and the psychological exam are evidence of Pioneer's attempt to eliminate any misperception that it may have had regarding McConnell's bipolar disorder. While it is possible for strong evidence of a prima facie case to also present a factual issue on pretext, the ultimate question is whether the plaintiff presents evidence of conduct or statements made by persons involved in the employer's decision-making process which reflect a discriminatory attitude sufficient to allow a reasonable jury to infer that that attitude was a motivating factor in the employer's decision to fire the plaintiff. Kiel, 169 F.3d at 1135. McConnell has not submitted evidence of conduct or statements inferring that discrimination based on disability was the motivating factor in the decision to dismiss him.
[¶ 47] III. Wrongful Termination in Violation of Public Policy
[¶ 48] McConnell claims that he was wrongfully terminated in violation of public policy. A public policy exception to the employment-at-will doctrine was recognized by the South Dakota Supreme Court in Bass v. Happy Rest, Inc., 507 N.W.2d 317 (SD 1993) and Niesent v. Homestake Mining Co. of California, 505 N.W.2d 781 (SD 1993). McConnell contends that the ADEA and ADA establish the public policy in areas of employment discrimination, and therefore, McConnell's termination based on age or disability discrimination is a wrongful termination. Because the ADEA and the ADA were not violated, the issue of whether age or disability discrimination creates a new exception to the employment-at-will doctrine does not need to be decided. The facts viewed in the light most favorable to McConnell do not support a cause of action for wrongful termination.
[¶ 49] IV. Intentional Infliction of Emotional Distress
[¶ 50] To state a claim for intentional infliction of emotional distress, McConnell must prove (1) an act by defendant amounting to extreme and outrageous conduct; (2) intent on the part of defendant to cause plaintiff severe emotional distress; (3) defendant's conduct was the cause in fact of plaintiff's injuries; and (4) plaintiff suffered an extreme disabling emotional response to defendant's conduct. Hayes v. Northern Hills Gen. Hosp., 1999 SD 28, ¶ ___, 590 N.W.2d 243, 251.
[¶ 51] Extreme and outrageous conduct has been defined as conduct exceeding all bounds usually tolerated by decent society and which is especially calculated to cause, and does cause, mental distress of a very serious kind. Richardson v. East River Elec. Power Co-op, 531 N.W.2d 23, 27 (SD 1995). Evaluation of whether this type of conduct occurred is an issue for the Court. Hayes, 1999 SD 28, ¶ ___, 590 N.W.2d at 251. The facts read in the light most favorable to McConnell suggest no such conduct on the part of Pioneer.
[¶ 52] Accordingly, it is hereby
[¶ 53] ORDERED that Pioneer's motion for summary judgment (Docket 55) is granted.